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FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, determined the Tramadol pills possessed by the inmate defendant did not constitute dangerous contraband, requiring a reduction of the conviction from promoting prison contraband first degree to second degree. The Fourth Department disagreed with the cases from other departments which held small amounts of drugs to constituted dangerous contraband:

The Court of Appeals in People v Finley (10 NY3d 647 [2008]) considered the unrelated prosecutions of two inmates for promoting and attempted promoting prison contraband in the first degree, both involving small amounts of marihuana. The Court pronounced the test for courts to apply: “[T]he test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” (id. at 657). * * *

We recognize that, after Finley was decided, some courts have considered cases involving the possession of drugs other than marihuana and have concluded that the possessed drugs were dangerous contraband on what may be viewed as less “specific, competent proof” of a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats … . For example, testimony that the defendants were engaged in drug trafficking has been held to be sufficient to establish that there was dangerous contraband (see e.g. People v Ariosa, 100 AD3d 1264, 1265-1266 [3d Dept 2012], lv denied 21 NY3d 1013 [2013]; People v Cooper, 67 AD3d 1254, 1256-1257 [3d Dept 2009], lv denied 14 NY3d 799 [2010]). We disagree with those cases to the extent that they do not focus on the dangerousness of the use of the particular drug at issue, but instead focus on broad concerns that could involve any sort of contraband, such as alcohol, cigarettes or other items that are not dangerous in themselves … . People v Flagg, 2018 NY Slip Op 07849, Fourth Dept (11-16-18

CRIMINAL LAW (FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DANGEROUS CONTRABAND, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/DANGEROUS CONTRABAND (CRIMINAL LAW, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/INMATES (CRIMINAL LAW, CONTRABAND, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))/CONTRABAND (CRIMINAL LAW, INMATES, FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT))

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Statement Elicited by Unnecessary Force Properly Suppressed
DECISION WHETHER TO ADMIT OR DENY ALLEGATIONS IN A PREDICATE FELONY STATEMENT IS RESERVED TO DEFENDANT PERSONALLY, NOT DEFENSE COUNSEL (FOURTH DEPT).
ERROR FOR JUDGE TO EFFECTIVELY IGNORE SPECIFIC QUESTIONS IN A JURY NOTE AND TO INSTRUCT THE JURY ON A LEGAL ISSUE THAT HAD NOT BEEN RAISED BEFORE AND COULD NOT, THEREFORE, HAVE BEEN ADDRESSED BY DEFENSE COUNSEL IN SUMMATION (FOURTH DEPT)
WHERE A NOTE OF ISSUE HAS BEEN FILED BUT IS SUBSEQUENTLY VACATED, THE ACTION IS NOT SUBJECT TO DISMISSAL AS ABANDONED PURSUANT TO CPLR 3404 (FOURTH DEPT).
A PRIOR RULING IN A PRIOR ACTION FINDING THAT THE WITHHELD DOCUMENTS WERE PROTECTED FROM DISCLOSURE DID NOT INDICATE THE SPECIFIC PRIVILEGE WHICH APPLIED TO EACH DOCUMENT; THEREFORE THE PRIOR RULING DID NOT TRIGGER THE COLLATERAL ESTOPPEL DOCTRINE AND THE DISCLOSURE OF DOCUMENTS MUST BE DETERMINED ANEW IN THE INSTANT ACTION (FOURTH DEPT).
THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). ​
REFUSING TO TAKE A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT).

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